Mula v. Meyer

• Decision Date: 15 April 1955
• Court: California Court of Appeals Court of Appeals
• Parties: Victor MULA, Plaintiff and Appellant, v. Oscar W. MEYER, Defendant and Respondent. Civ. 16268.

Page 107

282 P.2d 107

132 Cal.App.2d 279

Victor MULA, Plaintiff and Appellant, v. Oscar W. MEYER, Defendant and Respondent.

Civ. 16268.

District Court of Appeal, First District, Division 1, California.

April 15, 1955.

M. Henry Robidoux, Arvin O. Robb, San Jose, for appellant.

Campbell, Custer, Warburton & Britton, Alfred B. Britton, Jr., San Jose, W. R. Dunn, Burlingame, for respondent.

PETERS, Presiding Justice.

Plaintiff, Victor Mula, an employee of a subcontractor, appeals from an adverse judgment rendered in an action brought by him against defenant Oscar W. Meyer, the general contractor, for damages for personal injuries plaintiff received while working on the job, it being claimed that such injuries were proximately caused by the failure of defendant to install a safety device required by law.

The defendant, on October 2, 1950, as general contractor, was engaged in the construction of a house. Plaintiff was working on that house as an employee of the heating contractor. On the date of the accident the rough flooring in the living room and den of the house had been installed. In a corner of the living room and extending into the den was a triangularly-shaped hole approximately 6 1/2' X 5' X 5', intended for the fireplace structure which had not yet been installed. Plaintiff, on the morning in question, was instructed by his foreman to install the required heating registers. A register is first covered with paper and then nailed into place in the hole that has been prepared for it by the carpenters. Plaintiff testified that he prepared a register to be installed in the north wall of the living room, and to do so had to clear away a lot of debris that covered the living room floor. The testimony of defendant's witnesses was that the living room floor had been swept before plaintiff arrived, and was clean. When plaintiff arrived on the job, and while preparing the register for installation, he apparently saw the fireplace opening. His precise testimony is that 'I might have noticed it going in. * * * I might have saw it. * * * I guess I saw the opening.' (R.T. 21.) He also testified that the opening was not then covered and had no railing around it, 'it was just an open hole.' (R.T. 21.) Plaintiff's foreman, who had brought plaintiff to the job, was not present when the accident occurred, but returned to the house several hours later. He testified that at that time there was no railing around the fireplace hole. On the other hand, the foreman for defendant testified that until the morning of the accident the hole had been covered with planks, and also had a 2"' X 4"' railing around it, but that the very morning of the accident before plaintiff started work the planks had been removed for the convenience of the masons who were to construct the chimney and fireplaces. He also testified that the hole was to accommodate a double fireplace, one in the living room and one in the den, with a single brick chimney containing separate flues for each fireplace. This witness was positive that the railing was in place at the time of and after the accident.

Plaintiff testified that, after preparing the register, he found a saw horse in the room, placed it parallel to the wall near the open hole, and stood on the saw horse while nailing the register to the studs where it was supposed to be installed. He stated that after completing this operation, he 'stepped off of the saw horse and made a couple of turns around to sight the south wall' (R.T. 24) because he was under the impression that there might be another register required in the living room. He turned a full circle, took another step to the right, and fell into the fireplace hole. He suffered serious injuries.

The foreman for defendant testified that immediately after the accident he rushed over to the fireplace hole; that he saw plaintiff lying in the basement; that the railing around the hole was still intact; and that the saw horse was turned upside down over that portion of the hole that was in the den.

As part of his case plaintiff introduced into evidence sections 1571 and 1561 of the Construction Safety Orders of the Division of Industrial Safety. Section 1571 requires that any hole cut in a floor shall be covered with planks or fenced on all sides with a railing. Section 1561 prescribes the specifications of the lumber that must be used for such railings.

The jury was instructed on theories of negligence, on the doctrine of negligence per se as it applied to defendant, and on contributory negligence. It brought in a verdict for defendant. Plaintiff appeals from the judgment entered on that verdict.

The major contention of appellant seems to be that, under the facts and the law, his contributory negligence, if any, was not a defense to the action, and that it was error of a most prejudicial nature to have instructed on the doctrine at all. It is argued that, as a matter of public policy, the provisions of the Industrial Safety Act were passed for the benefit of all workmen on the job, and that the beneficent purposes of these provisions cannot be defeated by the defense that the worker for whose benefit they were passed was contributively negligent. There are some decisions that hold that contributory negligence is not a defense in actions based upon violation of a statute enacted for the protection of a particular class of persons who are incapable of protecting themselves. See cases collected in annotation 171 A.L.R. 894, 895. This is the view of the Restatement of Torts. Section 483 provides that: 'If the defendant's negligence consists in the violation of a statute enacted to protect a class of persons from their inability to exercise self-protective care, a member of such class is not barred by his contributory negligence from recovery for bodily harm caused by the violation of such statute.'

This rule is generally applied in interpreting statutes passed for the protection of children, insane persons, or patrons of bars, etc. But even as to the limited class included within this exception to the general rule, the overwhelming weight of authority is that contributory negligence is a defense. In the annotation referred to above, at page 897, many cases are cited to support the statement that: 'Generally speaking, however, the great majority of the courts have taken the broader view that unless expressly precluded by statute, the contributory negligence of the plaintiff is as good a defense to an action based on the violation of a statute as to an action for common-law negligence * * *. This conclusion has been reached even in cases where the violation of the statute was regarded as negligence per se.'

Appellant argues, however, that California by statute has adopted the rule of the Restatement in reference to the violation of safety measures passed for the protection of employees. He refers to section 2801 of the Labor Code, which provides:

' § 2801. In any action to recover damages for a personal injury sustained within this State by an employee while engaged in the line of his duty or the course of his employment as such, or for death resulting from personal injury so sustained, in which recovery is sought upon the ground of want of ordinary or reasonable care of the employer, * * * the fact that such employee has been guilty of contributory negligence shall not bar a recovery therein where his contributory negligence was slight and that of the employer was gross, in comparison, but the damages may be diminished by the jury in proportion to the amount of negligence attributable to such employee.

'It shall be conclusively presumed that such employee was not guilty of contributory negligence in any case where the violation of any law enacted for the safety of employees contributed to such employee's injury. * * *'

This section was first enacted in 1911 as part of the so-called Roseberry Act. Stats. of 1911, Chap. 399, §§ 1 and 2, p. 796. When the Workmen's Compensation Acts were adopted in 1913 and 1917 this provision of the Roseberry Act was preserved to govern those few situations in which the employee may still sue his employer. But the section, by express language, applies only to the employer-employee relationship, and has no application to an action such as the instant one by an invitee against the invitor. As to that relationship, the defense of contributory negligence exists even though defendant's liability is predicated upon violation of a safety order. Bickham v. Southern Cal. Edison Co., 120 Cal.App.2d 815, 263 P.2d 32; Dunn v. Pacific Gas & Electric Co., 43 Cal.2d 265, 272 P.2d 745.

Appellant argues that a violation of a safety order constitutes negligence per se, and then apparently argues that in such a case liability is absolute. Appellant has misconceived the legal effect of a violation of a safety order or statute. It is undoubtedly true that the safety orders here involved were enacted for the protection of the class of which appellant is a member. This being so, a violation of the safety orders constituted negligence per se. Clinkscales v. Carver, 22 Cal.2d 72, 136 P.2d 777. In other words, in such a case the jury must be instructed that if a violation is found the jury must find the defendant guilty of negligence as a matter of law. Here the jury was so instructed. But because the defendant was negligent as a matter of law does not determine that he is absolutely liable. He may have any one of several defenses. He may be able to prove that, although he was negligent, plaintiff too acted negligently so as to contribute concurrently and proximately to the accident. See Blodgett v. B. H. Dyas Co., 4 Cal.2d 511, 50 P.2d 801. The argument that, because respondent was guilty of negligence per...